Courtesy of the SUN
Since he doesn’t live in the City and doesn’t read the blogs or listen to Saturday Morning Live, I expect you’ll hear Todd Robbins of WCAP say on Monday “I’ve exclusively learned that License Commissioner Walter Bayliss has no legal grounds for appeal if the City Council supports the Managers decision to dismiss him.”
I’ll just say that I consulted with a very talented and respected lawyer about a cities ability to seemingly be exempt or overrule a State law and this was the answer I received.
“Without reviewing Lowell’s City Charter in any great detail, it appears that Lowell does have the ability to exempt itself from the requirements provided under MGL c. 138 sec. 5 (including the right of a removed member to apply to the Superior Court for a review of the charges).
That is not because Lowell is overruling a state law, but rather because Lowell, as a city organized under a Charter, is exempt from sections 4-9 of MGL c. 138. This exemption comes from MGL c. 138 sec. 10, which reads in part:
Section 10. The following cities shall be exempt from the operation of the six preceding sections: First, cities having a licensing board or commission created by special statute or under the provisions of a charter…
Lowell is a city organized under a Charter, and its Charter expressly cites MGL c. 138, s.10 in establishing the Licensing Commission. As a result, it is exempt from the requirements of MGL. C. 138, s. 5.
Gerry:
The lawyer you spoke to is wrong. I call your attention to the case of McDonald v. Justices of the Superior Court, 299 Mass. 321 (1938). The case clearly states that one appointed a member of a city licensing board does not hold a municipal office, but a state office to which city charter provisions do not apply. The case goes onto say “The intent of the General Court in enacting the general law governing control of liquor upon the repeal of the national prohibition amendment, as expressed by the enactment of said new chapter 138 in St.1933 Ex.Sess., c. 376, was to supersede the charter provisions as to removals.”
Mr. Bayliss may have his day in Court.